Application

102  Sections 103 to 105 apply only to the industries to which Part 1 does not apply and to the workers employed in those industries, but those workers who are exempted under section 2 from the benefits of Part 1 are not by this section excluded from the benefits of sections 103 to 105.

Liability of employer

103  (1) Where personal injury is caused to a worker by reason of a defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises connected with, intended for or used in the business of the worker's employer, or by reason of the negligence of the employer or of a person in the service of the employer acting within the scope of his or her employment, the worker, or, if the injury results in death, the legal personal representatives of the worker, and any person entitled in case of death has an action against the employer. If the action is brought by the worker, the worker is entitled to recover from the employer the damages sustained by the worker by or in consequence of the injury; and if the action is brought by the legal personal representatives of the worker or by or on behalf of persons entitled to damages under the Family Compensation Act, they are entitled to recover the damages they are entitled to under that Act.

(2) Where the execution of any work is being carried into effect under a contract, and the person for whom the work is done owns or supplies ways, works, machinery, plant, buildings or premises, and by reason of a defect in the condition or arrangement of them personal injury is caused to a worker employed by the contractor or by a subcontractor, and the defect arose from the negligence of the person for whom the work or any part of it is done, or of some person in his or her service and acting within the scope of his or her employment, the person for whom the work or that part of the work is done is liable to the action as if the worker had been employed by him or her, and for that purpose is deemed to be the employer of the worker within the meaning of this Part; but the contractor or subcontractor is liable to the action as if this subsection had not been enacted, but not so that double damages are recoverable for the same injury.

(3) Nothing in subsection (2) affects a right or liability of the person for whom the work is done and the contractor or subcontractor as between themselves.

(4) A worker is not, by reason only of continuing in the employment of the employer with knowledge of the defect or negligence which caused his or her injury, deemed to have voluntarily incurred the risk of injury.

Common law rules abrogated

104  A worker is deemed not to have undertaken the risks due to the negligence of his or her fellow workers, and contributory negligence on the part of a worker is not a bar to recovery by the worker or by any person entitled to damages under the Family Compensation Act in an action for the recovery of damages for an injury sustained by or causing the death of the worker while in the service of his or her employer for which the employer would otherwise have been liable.

Contributory negligence to be considered

105  Contributory negligence on the part of the worker must nevertheless be taken into account in assessing the damages in an action.